STACEY v. STACEY (2008)

 Plaintiff husband appeals from a judgment that, inter alia, granted defendant a divorce on the ground of cruel and inhuman treatment.   We reject his contention that the evidence at trial was insufficient to establish the requisite serious misconduct for cruel and inhuman treatment, i.e., that defendant's “physical or mental well-being was endangered and continued cohabitation with [plaintiff was] unsafe or improper” (Ridley v. Ridley, 275 A.D.2d 941, 942, 714 N.Y.S.2d 396;  see Domestic Relations Law § 170[1];   Brady v. Brady, 64 N.Y.2d 339, 343, 486 N.Y.S.2d 891, 476 N.E.2d 290;   Gross v. Gross, 40 A.D.3d 448, 836 N.Y.S.2d 166).   Defendant was required to establish that the parties suffered from more than “strained, unpleasant relations and incompatibility” (Stroke v. Stroke, 283 A.D.2d 992, 724 N.Y.S.2d 391 [internal quotation marks omitted] ) and, “[i]n [this] marriage of long duration, ․ a higher degree of proof [was] required to establish cruel and inhuman treatment because what could be viewed as substantial misconduct in a marriage of short duration might be only ‘transient discord’ in a marriage of many years” (Ridley, 275 A.D.2d at 942-943, 714 N.Y.S.2d 396, quoting Hessen v. Hessen, 33 N.Y.2d 406, 411, 353 N.Y.S.2d 421, 308 N.E.2d 891;  see McMahon v. McMahon, 42 A.D.3d 787, 788, 840 N.Y.S.2d 826;  Gross, 40 A.D.3d at 448, 836 N.Y.S.2d 166).   We note, however, the statement of the Court of Appeals that, “even in [a long-term] marriage ‘substantial misconduct’ might consist of one violent episode such as a severe beating” (Brady, 64 N.Y.2d at 345, 486 N.Y.S.2d 891, 476 N.E.2d 290).

Here, defendant testified on direct examination concerning an incident that occurred approximately five months before the commencement of this action, during which plaintiff called defendant vulgar names and repeatedly struck her on the side and back of her head.   The incident caused defendant to seek medical treatment, and she obtained an order of protection against plaintiff.   Defendant also testified that plaintiff verbally abused her before she left for work concerning her appearance and the clothes that she was wearing.   On cross-examination, defendant further testified that, throughout the course of the marriage she was hit or slapped by plaintiff “every time the dishes weren't done ․ or the laundry wasn't done.”   According to defendant, plaintiff's conduct was continuous and not an “ ‘isolated act of mistreatment’ ” (Wikiera v. Wikiera, 233 A.D.2d 896, 649 N.Y.S.2d 749, quoting Brady, 64 N.Y.2d at 344, 486 N.Y.S.2d 891, 476 N.E.2d 290).   Although plaintiff presented evidence refuting defendant's testimony, Supreme Court, as the trier of fact, had broad discretion in determining whether the conduct at issue “[rose] to the level of cruel and inhuman treatment” (Mikhail v. Mikhail, 252 A.D.2d 772, 773, 676 N.Y.S.2d 272;  see Jones v. Jones, 289 A.D.2d 983, 734 N.Y.S.2d 796, lv. dismissed 97 N.Y.2d 749, 742 N.Y.S.2d 607, 769 N.E.2d 354), “and we defer to Supreme Court on the credibility issues” (Newkirk v. Newkirk, 212 A.D.2d 951, 952, 622 N.Y.S.2d 831).   We conclude on the record before us that the court properly granted defendant a divorce on the ground of cruel and inhuman treatment (see generally Ridley, 275 A.D.2d 941, 714 N.Y.S.2d 396;  Meltzer v. Meltzer, 255 A.D.2d 497, 680 N.Y.S.2d 618).

 We agree with plaintiff, however, that the court erred in directing the immediate sale of the marital residence and in failing to award him exclusive use and occupancy of the marital residence until the parties' youngest child attains the age of 18 and we therefore modify the judgment accordingly.   Plaintiff was awarded custody of the parties' children and thus, under the circumstances of this case, he is entitled to such exclusive use and occupancy.  “Courts now express a preference for allowing a custodial parent to remain in the marital residence until the youngest child becomes 18 unless such parent can obtain comparable housing at a lower cost or is financially incapable of maintaining the marital residence, or either spouse is in immediate need of his or her share of the sale proceeds” (Nolan v. Nolan, 215 A.D.2d 795, 795, 626 N.Y.S.2d 568;  see Nissen v. Nissen, 17 A.D.3d 819, 820, 793 N.Y.S.2d 248;  Goldblum v. Goldblum, 301 A.D.2d 567, 568, 754 N.Y.S.2d 32).   Here, there is no evidence in the record that plaintiff, the custodial parent, could have obtained comparable, less expensive housing in the same area or that he is financially incapable of maintaining the residence, nor is there evidence that defendant is in immediate need of her share of the proceeds from the sale of the marital residence.

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating the direction that the marital residence shall immediately be sold and by awarding plaintiff exclusive use and occupancy of the marital residence until the parties' youngest child attains the age of 18 and as modified the judgment is affirmed without costs.

MEMORANDUM: